ISSUE 54 EWJ web - Journal - Page 20
Don’t Ignore the Serious Medical
Treatment Guidance - But Let’s be Clear
About What the Law Requires
by Alex Ruck Keene and Victoria Butler-Cole KC - www.mentalcapacitylawandpolicy.org.uk
Alex is a barrister, writer and educator, and creator of the website www.mclap.org.uk
This is a post co-written by Tor Butler-Cole KC and I,
prompted by the decision in GUP v EUP and UCLH
NHS Foundation Trust [2024] EWCOP 3, a case in
which Hayden J was concerned with a situation of a
woman in her late 80s who had sustained a serious
stroke and was being cared for in hospital. In the period following November 2023, Hayden J identified
that there had been:
considered that the Court ought to be able to review that decision making process and identify its own evaluation of where
EUP’s best interests lay. I agree with the family. A decision
not to provide nutrition is every bit as serious as a decision to
withdraw nutrition. Where there is conflict, these cases must
be resolved by the court.
In his concluding remarks, Hayden J referred to the
Serious Medical Treatment guidance he had issued in
January 2020 thus:
6. […] increasing divergence between the growing hope of
the family for some meaningful recovery and the view of the
clinicians that comfort and dignity ought to be the focus of
EUP’s care, at what they assess to be the end of her life. Whilst
these two perspectives of EUP’s medical needs have diverged,
I am concerned that the treatment she has received reflects a
convergence between the two. In other words, the treatment
plan has an air of compromise about it, a negotiation between
the family and the medical team. There may, sometimes, be a
place for that, but not if the person at the centre of it becomes
marginalised. P (the protected party) must always be afforded
care, which is identifiably in her own best interests. The family’s views are relevant only insofar as they provide a conduit
for P’s own wishes and feelings. Families, however loving and
well-meaning gain no dominion over their dying and incapacitous relatives. The family’s role, which is crucial, is to
promote and not subvert P’s autonomy.
50. Ms Dolan submits that the practice guidance, which I
issued in January 2020, then as Vice President of the Court
of Protection, indicates that the Trust, in circumstances such
as these, should bring the case to court promptly. Whilst that
document is expressly stated to be by way of guidance only, it
is rarely departed from in cases of this gravity. Had the Trust
followed it, and at an earlier stage, it would have greatly alleviated the stress to the family. Ms Dolan goes further in her
written submissions but I do not. Neither can I imagine that
the lawyers advising this Trust were unfamiliar with the guidance. It has been widely promulgated, see also [2020]
EWCOP 2. Where there is conflict in these serious medical
treatment cases, it is in everybody’s best interests, but most importantly P’s, to bring an application to court. That will be
most efficiently achieved where it is driven by the Trust’s application. There are many and obvious reasons why it is also
to the Trust’s advantage to have their treatment plans, in cases
such as this, scrutinised by the court.
From mid-November 2023, it had become impossible
to provide her with nutrition, but the Trust had continued to provide her with hydration, which appeared
to be a compromise reflecting the position above; a
matter which troubled Hayden J considerably.
Comment
We note and share, Hayden J’s concern about the
situation where, for the sake of compromise, the Trust
found itself providing treatment for which there was
no clinical rationale. From our experiences both of
cases, and of sitting on clinical ethics committees, such
situations are not uncommon, both in relation to incapacitated adults, and in relation to neonates. His
observations are, or should be, a helpful reminder that
the focus must always be kept on the interests of the
patient, not (as understandable as this can be) on the
interests of others.
With the benefit of two external second opinions, the
Trust reached the view that it was clinically inappropriate to continue to provide artificial nutrition. As
Hayden J identified (at paragraph 48), GUP (EUP’s
son), and his family:
were never fully on board with that plan. It is certainly the
case that there was a broadly co-operative relationship with
GUP but I think it was equally clear that he had not accepted
the medical consensus. The same applies to his sister, HUP
[w]ho has expressed strenuous resistance to the hospital’s plans
at this hearing. GUP has told me that the hospital had indicated to him that they were to make an application to court to
seek endorsement of their approach. I do not think this is in dispute. However, on 16th January 2024, the Trust confirmed
to the family that they had been advised by their lawyers that
it was not necessary for them to issue an application. The likely
reasoning behind this is that the Trust considered that there
was no ethical route to provide nutrition to EUP. The family
disagreed and saw this as passivity, with profound consequences. They perceived an important decision having been
taken, even though the decision was to take no action. They
EXPERT WITNESS JOURNAL
We have significantly greater reservations about the
observations about the bringing of the application.
We fully appreciate that it is not always necessarily easy
to distinguish between a dispute about clinical appropriateness (including, as a subset, futility) and a dispute about whether a treatment that is in principle
appropriate is nonetheless not in the best interests of
the person. But we suggest that a situation where – as
here – the Trust had obtained independent second
opinions from two doctors is a one where that
dividing line has been properly tested.
18
APRIL 2024